Here is my 2nd Yale PhD Dissertation Paper: Hart’s Fatal Mistake in The Concept of Law and How to Fix It:
Hart’s Fatal Mistake in The Concept of Law and How to Fix It
Sarah Braasch
Introduction
In The Concept of Law, HLA Hart crafts a theory of legal systems as the union of primary, duty-imposing social rules of obligation and secondary, power-conferring social rules of authority. The social group whose legal system it is confers authority upon the public officials of the legal system to promulgate, change, and adjudicate the primary, duty-imposing social rules of obligation. It is the citizenry who confers authority upon the public officials of a legal system. If the public officials purport to make law beyond the constraints of what the social group accepts as valid, then the public officials have failed to make valid law.
Hart then makes a fatal error, undermining his entire legal theory, an error, which Ronald Dworkin famously recognized and exploited to great effect in Law’s Empire. Hart alienates the citizenry from their own legal system. Hart does this to save the obligatory character of law. Hart believes that this obligatory character only manifests in situations wherein everyone in the social group accepts the social rule, and he believes that this will only occur when the social rule is a matter of great importance to the social group, such that no one would wish anyone in the social group to unilaterally deviate therefrom. This is a point upon which Hart receives much pushback, because he has to make a seemingly arbitrary distinction between social rules that are important enough to be real social rules, and social rules that are lesser, or not real, social rules, such as rules of etiquette.
Hart recognizes that it would never be the case that all members of a social group, the citizenry, would accept the social rules comprising their legal system. So, he strips the citizenry, the general public, of their legal system. He alienates them from their own social rules. For Hart, it is enough that the citizenry not mutiny against the public officials. He makes the body of public officials the social group whose legal system it is. He thinks that, by so doing, he is able to argue that all of the public officials of the legal system would accept the social rules comprising the legal system. But, this would mean that the public officials confer authority upon themselves and constrain themselves, according to what they will and will not accept as valid. And, still, as Dworkin so astutely pointed out, no body of public officials accepts their social rules en masse, as a monolithic entity, devoid of unilateral deviation or disagreement or dissent.
I believe there is a way to fix Hart’s fatal mistake, and craft a legal theory that returns a social group’s legal system to the citizenry, whose legal system it is. The solution is to apply a Modified Lewisian/Hartian Account of Social Conventions to Hart’s legal system as the union of primary, duty-imposing social conventions of obligation and secondary, power-conferring social conventions of authority. According to this account of social conventions (rules in Hart’s parlance), what it is to be a social convention is to be a union of a primary, duty-imposing social convention of obligation and a secondary, power-conferring social convention of authority. All social coordination requires authority.
By recognizing that all social rules/conventions are these unions of a primary social convention of obligation and a secondary social convention of authority, Hart’s necessary connection between obligatory character and unanimity of acceptance is severed. Social conventions are step public social goods, for which the public officials (authorities) are freeriding defectors, and the moment at which the social convention arises, the social group rests upon an equilibrium point. All members of the social group, save the authorities, are parties to the social convention. No one would wish anyone party to the social convention to unilaterally deviate, because the social convention (step public social good) would collapse. Therefore, there is something closely akin to an obligation for all social group members party to the social convention to continue to conform thereto. But, the authorities (freeriding defectors) are not party to the social convention, and they fare far better by continuing to defect. The fact of their not being party to the social convention also makes it the case that they are free to move the social group to alternate social conventions, by exercising their authority. It is in this way that we can allow for the social conventions of a legal system to arise, evolve, devolve, and, eventually collapse. Likewise, dissent and disagreement and legal advocacy become part and parcel of a legal system. Social conventions wax and wane over time, as do legal systems. The citizenry is a major player in its own legal system once again, conferring power upon public officials, constraining their authority, and pressuring the evolution and devolution of their legal systems.
A Modified Lewisian/Hartian Account of Social Conventions as the Basis for Hart’s Legal System in The Concept of Law
This Modified Lewisian/Hartian Account of Social Conventions defines a social convention as a Hartian system of social conventions. This system of social conventions includes a primary, duty-imposing social convention of obligation (or quasi obligation) and a secondary power-conferring social convention of authority. This is HLA Hart’s legal system from The Concept of Law, but modified. For Hart, legal rules are legal rules, because they are part of a system of social rules; however, Hart was actually giving an account of social conventions. As Gerald Postema elucidates in “Coordination and Convention at the Foundations of Law,” Hart misspeaks, or, rather, speaks imprecisely, when he refers to what are actually social conventions as social rules. The social conventions that comprise this system of social conventions are Lewisian social conventions, in that this is David Lewis’ game theoretic, rational choice-based account of social conventions from his seminal work, Convention, but modified.
Why modified? Both Lewis and Hart were trying to capture what they construed as an essential feature of social conventions, their obligatory character. But, both Lewis and Hart appreciated that they had only an individual, instrumental (means-ends) rationality with which to work. This led both men to devise accounts of social conventions that are Lewisian social conventions, in that there is a single rational thing to do, which is what everyone else in one’s social group is doing. If there is a single rational thing to do, then you have something approaching an obligation or quasi-obligation to do that one rational thing. Both Lewis and Hart demand unanimity in preference for, expectation of, and actual conformity, in order to generate obligatoriness.
But, Lewisian social conventions only arise in situations wherein everyone in a population is particularly motivated to align their beliefs and expectations with one another. No unilateral deviation may be tolerated, because everyone fares far worse, if even a single social group member fails to conform. This means that Lewisian social conventions are severely constrained. They must pop into and out of existence, and they cannot evolve or devolve, nor do they allow for dissent or disagreement or pluralism. This is because of the risk dominance of the status quo position. No one party to a Lewisian social convention is going to jump to an alternate social convention, unless she is certain that her entire social group will jump with her. But, we have pre-theoretical intuitions that our social conventions wax and wane over time, arising in a population, evolving and devolving, and, eventually, collapsing. We have pre-theoretical intuitions that people disagree about what the law is and should be.
There are 3 steps to modifying Lewis’ and Hart’s accounts of social conventions to allow for evolution and devolution, disagreement and dissent, and pluralism. Step 1 is to acknowledge Margaret Gilbert’s insight that social conventions are social group constituting in “Social Convention Revisited.” A population that has a social convention is a social group for that reason alone, if for no other. Step 2 is to acknowledge the role that practical authority plays. Practical authority solves the problem of the risk dominance of the status quo position, because a practical authority makes known how everyone in a social group will behave. The account of authority employed is that of legal philosopher Joseph Raz in The Authority of Law, but slightly modified. To have authority over someone is to have the power or capacity to alter their protected reasons, and a protected reason is a first order reason to do something and a second order reason not to consider any alternate actions (any alternate Lewisian social conventions, other than the one made salient by the practical authority). A last important point is that authority is always assumed, then conferred, but the risk-tolerant, foresighted persons required to assume such authority may be few and far between. Social coordination problems often go unsolved. This phenomenon has been studied empirically in “The unrealized value of centralization for coordination,” by Eva Ranehill, Frédéric Schneider, and Roberto Weber.
Step 3 is acknowledging that social institutions/conventions are step public social goods, as described in Hugh Ward’s “Three Men in a Boat, Two Must Row: An Analysis of a Three-Person Chicken Pregame.” This is so, because, as Brian Skyrms points out in The Stag Hunt and the Evolution of Social Structure, a social convention (Skryms is speaking to a social contract) is best thought of as a stag hunt scenario, rather than a prisoner’s dilemma. A stag hunt scenario includes a social convention, because you have incentive to play your part in the stag hunt, as long as others play theirs. The moment that the social good that is the constitution of the social group itself is generated, the social group resides upon an equilibrium point. This is because the practical authority is a free riding defector, a member of the social group, but not party to the social convention. Fortunately, Lewis allowed for negligible deviation in Convention. At the equilibrium point, no one party to the social convention has any incentive to deviate, because the social group would collapse back to the status quo. And, the practical authority/freeriding defector has no incentive to conform to the social convention, because they fare far better by freeriding. Thus, everyone who is party to the social convention has something approaching obligation to continue conforming, but we have severed the necessary connection between unanimity of conformity and obligatoriness.
We can now have sub social groups with sub social institutions/conventions that wax and wane over time. We can have disagreement and dissent and pluralism. The cooperative game theoretic concepts of the Core and the Shapley Value define when a sub social institution/convention becomes the social institution/convention of the entire social group. A social institution becomes a legal institution when the authority that is conferred by the social group or sub social group is conferred upon public officials qua public officials.
This is the game theoretic, rational choice-based formal definition of a Modified Lewisian/Hartian Account of Social Conventions:
First, the formal definition of the primary, duty-imposing social conventions of obligation (or quasi-obligation):
A regularity R in the behavior of members of a population P when they are agents in a recurrent situation S is a convention if and only if it is true that, and it is common knowledge in P that, in almost any instance of S among members of P,
- a minimum threshold level of or more members of P conforms to R;
- a minimum threshold level of or more members of P expects a minimum threshold level of or more members of P to conform to R;
- almost everyone has approximately the same preferences regarding R and R’;
- a minimum threshold level of or more members of P prefers to conform to R, on condition that a minimum threshold level of or more members of P conforms to R;
- a minimum threshold level of or more members of P would prefer to conform to R’, on condition that a minimum threshold level of or more members of P conforms to R’,
where R’ is some possible regularity in the behavior of members of P in S, such that almost no one in almost any instance of S among members of P could conform both to R’ and to R.
This also translates into the following formal definition for the secondary, power-conferring social conventions of authority:
The identification of a practical authority to make salient the solution to a primary duty imposing coordination problem of obligation, R, by members of a population P when they are agents in a primary duty imposing coordination problem of obligation is a convention if and only if it is true that, and it is common knowledge in P that, when such practical authority, R, is assumed, then:
- almost everyone conforms to R;
- almost everyone expects almost everyone else to conform to R;
- almost everyone has approximately the same preferences regarding all possible combinations of actions;
- almost everyone prefers that any one more conform to R, on condition that almost everyone conform to R;
- almost everyone would prefer that any one more conform to R’, on condition that almost everyone conform to R’,
where R’ is some possible identification of a practical authority (or none) by members of P in S, such that almost no one in almost any instance of S among members of P could conform both to R’ and to R.
The simultaneous existence of these two social conventions, one primary and duty-imposing, the other secondary and power-conferring, in union, is the formal definition of a Modified Lewisian/Hartian Account of a Social Convention.
Hart’s Fatal Mistake in The Concept of Law and the Hart/Dworkin Debate
As mentioned above, Hart demands unanimity in acceptance of the primary, duty-imposing social conventions of obligation or quasi-obligation, in order to establish the obligatory character of law. Hart demands that these social conventions are Lewisian social conventions, in that he requires unanimity in preference for, expectation of, and actual conformity to these Lewisian social conventions. No unilateral deviation may be tolerated. There is a single rational thing to do, which is what everyone else in your social group is doing, conforming to a Lewisian social convention.
Hart recognizes that it could never be the case that the entire social group, including both the general public/citizenry and the public officials, would all accept and use the same body of primary, duty-imposing social conventions of obligation or quasi-obligation. So, Hart makes it the case that the social group whose legal system it is includes only the public officials of the legal system. Hart alienates the general public/citizenry from their own legal system.
Hart recognizes that it must be the case that, generally speaking, the majority of the general public complies with the legal system of their public officials, but Hart allows that this could be the case merely if it is a habit of the general public to do so, or if it is a calculating move on the part of the members of the general public, to avoid sanction or to better themselves personally. Hart merely requires that the general public/citizenry not mutiny against the legal system of their public officials. Hart does not require that the general public takes the internal point of view towards the primary, duty-imposing social conventions of obligation or quasi-obligation of the legal system of their public officials. This brings up a whole slew of issues, which I address further below.
But, the point remains that Hart requires unanimity amongst the public officials. Hart requires that the entire body of public officials, whose legal system it is, takes the internal point of view towards their body of primary, duty-imposing social conventions of obligation or quasi-obligation. Hart refers to this body of primary, duty-imposing social conventions that is the foundation of the legal system of the public officials as the Rule of Recognition. Hart requires that the body of public officials has a social practice, a social practice which they regard as obligatory, to accept and use their body of primary, duty-imposing social conventions of obligation. The scope of the practice of the body of public officials defines the scope of the obligatory character of the primary, duty-imposing social conventions of the body of public officials, of the Rule of Recognition. The Rule of Recognition is the foundation of the legal system for Hart. It is the ultimate criterion of legal validity.
Of course, Dworkin exploits this fact, the fact that Hart requires the entire body of public officials to unanimously accept and use the Rule of Recognition, to great effect, as Scott Shapiro points out in Legality. Dworkin describes this criticism as the issue of theoretical disagreement. If there exist disagreements amongst public officials regarding what the law is or requires, regarding the content of the Rule of Recognition, and, of course, as Dworkin points out, such disagreements do exist, then whatever the disagreement is about, whichever purported legal rule/convention, is immediately disqualified as being a valid legal rule/convention in the legal system of the public officials. It is the fact of acceptance and use, of there being a social practice, that makes it the case that a particular social rule/convention is a valid legal rule/convention of the legal system of the public officials. If there is no fact of acceptance and use, then whichever social rule/convention is not a valid legal rule/convention. There is no space for theoretical disagreement about what the law is or requires, about the content of the Rule of Recognition, under Hart’s account of a legal system.
How to Fix Hart’s Fatal Mistake in The Concept of Law
I concur with Dworkin that this is a very serious problem for Hart, but, of course, I think the solution remains a positivist solution. I argue that we must re-enfranchise the general public/citizenry by employing a Modified Lewisian/Hartian Account of Social Conventions as the basis for Hart’s legal system in The Concept of Law. The Rule of Recognition is a body of primary, duty-imposing social conventions of obligation or quasi-obligation, but it does not belong to the public officials of the legal system; it belongs to the social group (the general public/citizenry) whose legal system it is.
The Rules of Change (including Promulgation and Adjudication) are secondary, power-conferring social rules/conventions of authority. The public officials do not have obligations to interpret or apply or amend or promulgate the valid legal rules/conventions of the legal system in which they operate; the public officials have had authority conferred upon them by the general public/citizenry, by the social group whose legal system it is. The scope of the legal authority of the public officials is constrained by the body of primary, duty-imposing social rules/conventions of obligation that the general public accepts and uses. This is the Rule of Recognition. But, if the public officials act outside of the scope of their legal authority, they have not violated an obligation; they have simply failed to make law.
The general public is very much an important player with respect to its own legal system. The general public confers legal authority upon the public officials of its legal system. The primary social conventions/rules that the general public accepts and uses, or that they would accept and use, define the scope of the legal authority of the public officials of the general public’s legal system. These are the alternate primary Lewisian social conventions, from which the public officials may choose to promulgate, change, and adjudicate. Gerald Postema makes a similar point in “Coordination and Convention at the Foundation of Law,” where he explicates his notion of a second order coordination problem between public officials and the general public/citizenry. Public officials are constrained by what the general public does and will accept, and this is necessary to capture both the obligatory character of law, and the fact that legal systems arise out of social practices.
Hart says that a social group has a legal system when they make rules about their rules, secondary rules about how to promulgate, adjudicate, and change their primary social rules. But, I would say, a social group has a legal system when they confer authority upon a body of public officials (which may sometimes include individual citizens) to promulgate, adjudicate, and change their primary social conventions. Individual citizens sometimes have this authority conferred upon them when they establish business contracts and enter into marriages, etc.
The legal rules/conventions of the legal system are social conventions in the sense of being a union of a primary, duty-imposing social convention of obligation and a secondary, power-conferring social convention of authority. This is why they are step public social goods. Social coordination always requires authority. A secondary, power-conferring social convention of authority arises out of necessity, to solve a coordination problem, when the practical, and in this case, legal, authority makes salient (promulgates, changes, or adjudicates) one or another alternate primary, duty-imposing social convention of obligation. The obligatory character of the secondary, power-conferring social convention (obligatory for the social group whose legal system it is, not for the public officials upon whom authority is conferred) piggy backs on the obligatory character of the primary, duty-imposing social convention.
And, as explained above, these legal rules/conventions, these step public social goods, can evolve and devolve, but it remains the case that there is a single rational thing to do, for those party to the primary social rule/convention, which is to conform to the primary social rule/convention. If this is the case, then they possess an obligatory or quasi-obligatory character, because there is a single rational thing to do, which is to continue to generate the step public social good. And, it makes sense that the body of public officials (the authority) would not have an obligation to comply with the primary, duty-imposing social rules/conventions as public officials, because they are the freeriding defectors. And, it is the very fact that the public officials (the authority) comprise a body of freeriding defectors that the obligatory character of the law is generated, because the entire social group resides at an equilibrium point, an equilibrium point at which no one, neither the general public (the body of cooperators who generate the step public social good) nor the public officials/authorities (the body of freeriding defectors) have any incentive to do otherwise.
The fact that the social conventions (rules) of a legal system can evolve and devolve over time while possessing an obligatory character makes space for difference, dissent, theoretical disagreement, and pluralism. We have severed Hart’s necessary connection between unanimity of acceptance and obligatory character. We have pre-theoretical intuitions that our legal systems do evolve and devolve over time, waxing and waning via legal advocacy and as the general public/citizenry makes demands of their public officials. And, our legal systems sometimes collapse, just as our social conventions do.
So, we have an answer, a positivist answer to Dworkin’s criticism with respect to theoretical disagreement. Also, we have re-enfranchised the general public. We have made it the case that the general public has something closely akin to obligation (or as close as we can get) to comply with the law, albeit an obligation based upon the fact that there is but a single rational thing to do, based upon an individual instrumental rationality (there are no normative facts, merely social facts). But, it is the general public who confers legal authority upon public officials, and the public officials are constrained by what the general public does and will accept. The public officials are answerable to the general public/the citizenry. A non-ideal legal theory is a legal system with legitimate authority, authority which may be stripped by the citizenry. A non-ideal legal theory is a legal system of, by, and for the People.
Law, i.e., legal authority, serves the function of helping social groups solve coordination problems, as well as move from a less optimal social convention to a more optimal social convention. A practical authority is a legal authority when her social group or sub social group has conferred authority upon her as a public official qua public official. Customary law also involves authority, which may be legal authority, but for a sub social group. A sub social group may confer authority upon public officials qua public officials, but only with respect to their sub social group’s legal institutions/conventions. These would not be legal institutions for the entire social group, but they could become so. Hart made another mistake that has not been so widely recognized. This is the mistake to think that a social group can possess a body of primary, duty-imposing social rules (conventions) of obligation without authority. Customary law demands authority as much as Hart’s legal system does, and this could also be legal authority, but it need not be. Social coordination always requires authority.
What is the Nature of Legal Authority?
But, is it not the case that secondary, power-conferring social conventions are coordination problems themselves? So, it might seem that we get ourselves into trouble at this point, if it is never the case that we merely coordinate without an authority, then how can we coordinate upon identifying an authority upon whom to confer legal authority? Authority is assumed. It is the fact that authority is assumed that makes it salient. And, there is no need to coordinate upon an authority, because the authority is assumed. It is subsequently conferred, and this conferral of authority is obligatory or quasi-obligatory. Because there is a single rational thing to do, and because it is necessary to confer authority, in order to do this one rational thing, there is something closely akin to an obligation to confer authority.
Recent empirical work bears out the assertion that authority is always assumed. For an authority to arise in a social group requires for there to exist at least one risk-tolerant foresighted person, someone who is able to recognize the long-term benefits of assuming authority and bear the costs associated with communicating the salience of one or another primary, duty-imposing social convention of obligation. Authority is always assumed and then conferred. So, there is always a risk involved. In Frederic Schneider et al.’s “The unrealized value of centralization for coordination,” they demonstrate that it is very difficult for social groups to coordinate to confer authority upon someone. This rarely happens. It is only when such authority is assumed that a social group is able to confer authority upon the assumed authority. We would expect to see that authority has to be assumed, in order to be conferred. And, given the hypothesis that assuming authority requires a certain level of risk tolerance, as well as a certain level of foresight, we should not expect to see authority being assumed ubiquitously.
I adopt Joseph Raz’s concept of authority, albeit modified. Raz asserts that to have authority over persons is to have the ability to alter their protected reasons. A protected reason is a first order reason to do something, as well as a second order reason to exclude from consideration all of one’s first order reasons to do otherwise. This aligns beautifully with a Modified Lewisian/Hartian Account of social conventions as the basis of Hart’s legal system in The Concept of Law. Hart’s legal system is the union of primary, duty-imposing social conventions of obligation and secondary, power-conferring social conventions of authority. Salience is a protected reason. The legal authority makes salient the one or another primary social convention. Salience is a first order reason to conform to the primary social convention being made salient, as well as a second order reason to exclude all of one’s first order reasons to do otherwise, i.e., to conform to any alternate primary social conventions.
Raz makes a distinction between being an authority and having authority, but I make no such distinction. I do make a distinction between being an authority and being a public official of a legal institution, i.e., being a legal authority. Legal authority is conferred upon a public official of a legal system when it is conferred upon a public official qua public official. Legal authority could be conferred by either a sub social group or the entire social group.
For Raz, this concept of authority does away with the so-called paradoxes of authority, i.e., that to submit to authority is irrational, because rational, and moral, authority requires autonomy, understood as consideration of all of one’s first order reasons to act. On Raz’s concept of authority, there exists a second order reason to exclude consideration of one’s first order reasons to do otherwise, other than as the first order component of one’s protected reason to act indicates. Of course, above, I argue that it is not only rational, but obligatory, or, at least, quasi-obligatory, to confer authority, in order to solve coordination problems.
The Problem with Hart’s View of Legal Authority
I argue that the Rule of Recognition, the ultimate criterion of validity of the legal rules/conventions of a legal system, is the body of primary, duty-imposing social conventions of obligation of the social group whose legal system it is, the primary social conventions that the social group whose legal system it is do or would accept. The general public/citizenry confers authority upon the public officials of the legal system to make, change, and adjudicate their primary social conventions, and the public officials are constrained by what the general public does and will accept. The general public confers legal authority upon the public officials of their legal system, to help the social group solve coordination problems and move from less optimal to more optimal primary social conventions.
It may very well be the case that a social group’s primary social conventions are standards of conventional morality; it may very well be the case that a public official has the legal authority to make salient this or that primary social convention, because it is conventionally morally superior. What is dispositive is the fact that the social group accepts and uses the primary social conventions that they do accept and use. What is paramount is the fact that the social group confers legal authority on their public officials/legal authorities. These are social facts.
This account of social conventions and legal systems renders me an inclusive legal positivist. An inclusive legal positivist argues that it’s the case that the Rule of Recognition, the ultimate criterion of validity of the legal rules/conventions of a legal system, could include primary social conventions that are standards of conventional morality. I once argued for exclusive legal positivism in a trivial sense, because I believed that the Rule of Recognition was only a secondary, power-conferring social convention of authority. If the Rule of Recognition were a secondary, power-conferring social convention of authority, then it necessarily could not include a primary social convention that is a standard of conventional morality. An exclusive legal positivist argues for a necessary separation between law and morality, while an inclusive legal positivist allows for the social fact that the Rule of Recognition can include primary social conventions that are standards of conventional morality and the social group can confer legal authority upon public officials to choose, promulgate, change, make salient, and adjudicate the primary social convention that is morally conventionally superior.
Hart’s concept of legal authority in The Concept of Law is confused. Initially, Hart argues for an account of legal systems that is very much in line with the account described above, based on a Modified Lewisian/Hartian Account of Social Conventions. But, then, he chooses to alienate the general public from their own legal system, in order to capture the obligatory character of law. He chooses to make it the case that the Rule of Recognition is a body of primary, duty-imposing social conventions/rules of obligation that govern the behavior of the public officials alone. Hart still seems to think that these primary social conventions/rules give rise to secondary, power-conferring social conventions/rules of authority. But, this is very confusing. It would seem that public officials confer legal authority upon themselves. However, in order for it to be the case that the Rule of Recognition is their Rule of Recognition, in the sense that the fact that the public officials accept and use the Rule of Recognition constitutes the public officials as a social group, it would seem to be the case that the public officials must exist as public officials, qua public officials, prior to it being the case that they confer legal authority upon themselves to make, change, and adjudicate their own primary social conventions/rules of obligation. It simply isn’t clear on Hart’s account how either legal authority or public officials arise. Hart’s account of legal authority and public officials devolves into a chicken and egg argument. And, this is because he alienates the general public/citizenry from their own legal system.
What About Legitimacy?
It does seem to be the case that I am arguing that legal authority is always conferred by the social group whose legal system it is; therefore, am I not saying that a legal system is always legitimate, if it exists? In a sense, I am saying this. This may be somewhat controversial, but I am arguing that legal authority is always conferred. If it were not conferred, then the legal authority would not exist. The legal authority would not have the power to change the protected reasons of the social group members. However, I am making space for a sub social group having been hijacked. I make space for them having been coerced via propaganda. I argue that this must happen, in order to build both social and legal institutions. And to say that a legal system is legitimate in this sense is not to say that it is moral. It remains the case that the quasi-obligation, because there is a single rational thing to do, which is to continue contributing to the generation of the step public social good, is a matter of an individual instrumental rationality. But, in a sense, if one continues to perpetuate the step public social good that is the State, which entails conferring authority upon the small group of public officials/legal authorities/freeriding defectors, because it is in one’s own interest to do so, then one is complicit. It is more optimal that the State exists, that certain social institutions and legal institutions exist, despite the fact that they are, by their very nature, oppressive and coercive, than it is for the legal and social institutions and the State to collapse back to the state of nature. Future work will further develop this concept of legitimacy. There is a sense in which a legal system is legitimate if it exists. And, I make room for difference, dissent, and pluralism. I make room for social and legal activism. But, there remains a sense in which all social change entails coercive propaganda. However, the legal authority of public officials is constrained by what the general public does and will accept.
I also make room for the pool of freeriding defectors to include those persons who are not part of the legal authority; they have not conferred authority, and they do not contribute to the generation of the step public social good. These persons do not take the internal point of view towards the primary, duty-imposing social conventions/rules of the social group. They are persons who are a part of the social group; they are freeriding defectors who benefit from the generation of a legal system for their social group, but they may only recognize their social group’s laws, in order to avoid sanction, or to take advantage of those who do comply with their social group’s laws. These persons are typically characterized as criminals, but I will address this as a misnomer below.
When Does a Social Institution for a Sub Social Group Become a Social Institution for the Entire Social Group?
In order to define the point at which a social institution/convention of a sub social group becomes a social institution/convention for the entire social group, I make use of concepts from cooperative game theory, namely the Shapley Value and the Core. The Core is a distribution of payoffs amongst the members of a social group (or a sub social group) formed into coalitions, such that no one would prefer to do otherwise by joining a different coalition. If it is the case that some sub set of members of the social group would do better by joining some other coalition, then this sub set of members is said to block the existing coalition (or set of coalitions). Being inside the Core is a measure of stability. A set of coalitions with whatever distribution of payoffs is said to be stable, if it’s in the Core, because no one will disrupt the current arrangement by forming an alternate coalition. The Shapley Value is a measure of fairness. The Shapley Value is the payoff that each member of the social group, given the current arrangement of coalitions, should receive. The Shapley Value is the average of the marginal contributions for each possible ordering for the current arrangement of coalitions for each member of the social group. The idea is that you should receive a payoff that reflects your contribution to the total payoff of the social group.
I argue that as soon as a subset of a social group has developed a sub social convention, as in a sub step public social good, then this sub social group has established a mini customary legal system. This is the case, because they have established a system of the union of a primary, duty-imposing social convention of obligation and a secondary, power-conferring social convention of authority. They have conferred authority upon someone(s), and, by doing so, they have created a step public social good that they have a quasi-obligation to continue to generate. If this step public social good, which is the creation of the sub social group itself, is in the Core, which it is by definition, then this is a social institution/convention, but only for the sub social group, for those who have conferred such social authority. It is not a social institution for the entire social group. I make a distinction between customary law and a full-fledged legal system. A customary law institution is a social institution, but not a full-fledged legal institution. A legal institution is a social institution for either a sub social group or the entire social group for which the conferred authority has been conferred upon public officials qua their status as public officials.
The authorities could have their own social convention, a tertiary social convention, to establish a distribution of the costs of communicating salience. And, finally, the social institution is a social institution for the entire social group, including freeriding defectors who are not authorities, when the set of coalitions that comprise the step public social good are in the Core for the entire social group. So, legal institutions are social institutions that are in the Core for either a sub social group or the entire social group, for which the conferred legal authority remains in the hands of a small subset of the social group qua their explicit status as public officials. I will also delve further into the idea of using the Shapley Value to define a legitimate legal or social institution, as opposed to an illegitimate legal or social institution.
Are Criminals Criminals? Or, Are They Freeriding Defectors (But Not Authorities)?
Our notion of criminal punishment is called into question with this account of a legal system. The freeriding defectors, including those who have not and are not legal authorities/public officials, serve an important purpose. They ensure the stability of the step public social good that is the legal institution, including the State itself. I argue that the State does not in fact punish so called criminals as a retributive statement on behalf of the citizenry, and the State does not in fact punish so called criminals with the aim of specific deterrence. The State does not in fact want so called criminals to stop being freeriding defectors. The State punishes so called criminals as propaganda, undermining propaganda. The State needs for the social group members that are the pool of cooperators to know that there exists a large subset of the social group who are freeriding defectors, so that the cooperators will continue to comply with the law, so that the legal system and the State do not collapse back to the state of nature. This is what the State is actually doing when it punishes so called criminals. So, you could make the argument that the purpose of punishment is general deterrence. But, a purpose of maintaining the status quo is a better characterization. Additionally, I would like to address how the State’s policy of mass incarceration arises and how the over populated prison system is itself a system of undermining propaganda and oppressive coercion, not just of those imprisoned, which it is, of course, but also of those who number themselves amongst the group of cooperators who are generating the State and its legal system through their compliance. And, of course, it is amongst this pool of so-called criminals that social change and activism is possible. So, of course, they are a threat to the existing State/legal system. It is possible for social activism to arise within the pool of cooperators as well, but this is more likely to take place amongst the so-called criminals.
Conclusion
Hart’s fatal mistake in The Concept of Law was to alienate the general public/citizenry from their own legal system. He did this to capture the obligatory character of law, or, at least, something closely akin thereto, i.e., the quasi-obligation that exists when there is a single rational thing to do, which is to conform to the Lewisian social convention to which your entire social group is conforming. Hart chose to alienate the social group whose legal system it is from their own legal system, because he knew he could never have the unanimity in acceptance that his account of a legal system demanded. But, in so doing, he dealt a fatal blow to his legal theory. Unanimity of preference for, expectation of, and actual conformity can no more be expected of the body of public officials of a legal system than it can be expected of the general public/citizenry. And, he created an untenable chicken and egg dilemma, because the public officials of Hart’s legal system now confer authority upon and constrain themselves. It’s not even clear how they arise in the first place. Moreover, Hart’s legal system cannot evolve or devolve over time, and leaves no room for dissent or disagreement or pluralism.
The solution is to apply a Modified Lewisian/Hartian Account of Social Conventions to Hart’s account of a legal system in The Concept of Law. A legal institution is a social institution/convention; it is a step public social good. Just as Hart’s legal system in The Concept of Law is a union of a primary, duty-imposing social convention/rule of obligation and a secondary, power-conferring social convention/rule of authority, so is a social convention itself, according to the Modified Lewisian/Hartian Account of Social Conventions, for which a formal game-theoretic, rational choice-based definition has been given above.
All social coordination requires authority. A practical authority overcomes the risk dominance of the status quo position in a situation that gives rise to a Lewisian social convention, because the practical authority makes known how all social group members will behave. And, because the practical authority is a freeriding defector, the moment that the social convention that is the social group itself is generated, the social group sits upon an equilibrium point. No one who is party to the social convention has any incentive to stop cooperating to generate the step public social good, because the social institution/convention would collapse. Therefore, there is a quasi-obligation to do the one rational thing, which is to continue to conform to the social convention. In this way, we are able to sever Hart’s necessary connection between unanimity in acceptance and obligatory character. Thus, we can have sub social groups with sub social institutions/conventions (step public social goods) that wax and wane over time. And, we can accommodate difference, dissent, and pluralism. And, most importantly, we can re-enfranchise the general public/citizenry, and give back the legal system to the social group whose legal system it is. The general public is a major player in their own legal system again, conferring legal authority upon the public officials of their legal system, and constraining the boundaries of their public officials’ legal authority, which is the Rule of Recognition, the ultimate criterion of validity of a legal system, the body of primary social conventions the social group whose legal system it is do and will accept and use.
Future work will include a complete account of how sub social groups evolve and devolve, as well as a precise account of when a social institution of a sub social group becomes a social institution of the entire social group. Additionally, I will delve deeper into the process of how an authority arises and what happens when there is more than one assumption of authority to solve a particular coordination problem. I will also complete an agent based computational model and simulations in Matlab of how social institutions, including legal institutions, arise in a population, evolve, devolve, and, eventually, collapse. I will also complete an empirical social psychological study on the nature of authority, the nature of legitimacy, and the nature of the relationship between the two.
Work Cited
Dworkin, Ronald, 1986b, Law’s Empire, Cambridge: Harvard University Press.
Gilbert, Margaret, 1989. On Social Facts, New York: Routledge.
Gilbert, Margaret, 2008. “Social Convention Revisited,” Topoi, 27: 5–16.
Hart, H.L.A., 2012, The Concept of Law, 3rd edition (first edition 1961), Oxford: Clarendon Press.
Lewis, David, 1969. Convention, Cambridge: Harvard University Press.
Pacheco, J., Santos, F., Souza, M., & Skyrms, B. (2009) Evolutionary dynamics of collective action in N-person stag hunt dilemmas. Proc. R. Soc. B. 276, 315-321. (doi:10.1098/rspb.2008.1126)
Postema, Gerald, 1982. “Coordination and Convention at the Foundations of Law,” The Journal of Legal Studies, 11(1), 165-203.
Ranehill, Eva, Schneider, Frédéric, & Weber, Roberto, “The unrealized value of centralization for coordination” (unpublished manuscript dated January 1, 2017 received from authors).
Raz, Joseph, 1979, The Authority of Law, Oxford: Clarendon Press.
Raz, Joseph, 1990, Practical Reason and Norms, 2nd ed., Oxford: Clarendon Press.
Shapiro, Scott, 2011, Legality, Cambridge, MA: Harvard University Press.
Skyrms, Brian, 1996. Evolution of the Social Contract. Cambridge: Cambridge University Press.
Skyrms, Brian, 2010. Signals: Evolution, Learning, and Communication, Oxford: Oxford University Press.
Skyrms, B. (2004). The Stag Hunt and the Evolution of Social Structure. Cambridge: Cambridge University Press.
Ward, Hugh, 1990, “Three Men in a Boat, Two Must Row: An Analysis of a Three-Person Chicken Pregame”, Journal of Conflict Resolution, Vol 34, Issue 3, pp. 371 – 400.
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